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: (415) 537-1777 is pleased to present W H A T Y O U S H O U L D O F by Joyce B. David, Esq. 1988/89 Revised Edition Foreword by the Hon. Milton Mollen Presiding Justice Appellate Division Second Judicial Department 1 WHAT YOU SHOULD KNOW IF YOU'RE ACCUSED OF A CRIME Copyright c 1986, 1988 - by Joyce B. David, Esq. All rights reserved. No part of this publication may be reproduced, translated or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the author, except by a reviewer, who may quote brief passages in a review. Requests for permission to make copies of any part of this work should be directed to: Joyce B. David, Esq., 16 Court Street (Tower Suite), Brooklyn, New York, 11241, (718) 875-2000. If you're reading this on an Electronic Bulletin Board, you may download it for your own use. If you're interested in ordering copies of the published handbook, the prices are as follows: 1 - 9 copies 10 - 99 copies 100 or more copies Shipping and handling * All orders must be prepaid. * State and local taxes apply in New York. Include resale or tax exempt number, if applicable. Make checks payable to: Balaban Publishing Co. Legal Handbooks Division 163 Joralemon Street - Suite 1502 Brooklyn, New York, 11201. Printed in the United States of America $4.00 per copy $3.00 per copy $2.00 per copy $0.25 per copy K N O W A I F Y O U ' R E



1988/89 Revised Edition ISBN 0-9617121-1-2 2 F O R E W O R D Anyone confronting the bewildering and, to many, the intimidating and nerve shattering complexities of the New York State criminal justice system for the first time in his or her life, will find Joyce David's handbook outlining the ABC's of the system an invaluable tool in dealing with them. A highly-respected attorney with a wealth of first-hand experience in all aspects of criminal law, Ms. David's thorough, step-by-step description of what a criminal case is all about, written in language readily understood by the average layman, unschooled in legal procedures and terminology, will do much to ease the pain of that first encounter with the law. Ms. David, expertly and concisely, spells out just what he or she may expect at every stage of the case, explaining just what will happen and why. As she points out correctly in her own introduction, those exposed for the first time to the criminal justice system often feel as though they are in a foreign country, with strange new rules, procedures and language. WHAT YOU SHOULD KNOW IF YOU'RE ACCUSED OF A CRIME provides the anxious "tourist" with a thoroughly professional and knowledgeable guidebook. Milton Mollen Presiding Justice Appellate Division Second Judicial Department 3 TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . CHOOSING A CRIMINAL LAWYER . . . . . LAWYER/CLIENT RELATIONSHIP . . . . . LAWYERS' FEES. . . . . . . . . . . . BEFORE YOU'RE ARRESTED . . . . . . . DON'T CONFESS. . . . . . . . . . . . SOME OTHER DON'TS. . . . . . . . . . LINE-UPS . . . . . . . . . . . . . . SURRENDER. . . . . . . . . . . . . . THINGS YOUR LAWYER MAY NEED TO KNOW. THE ARREST . . . . . . . . . . . . . BOOKING. . . . . . . . . . . . . . . C.J.A. INTERVIEW . . . . . . . . . . WHAT ELSE HAPPENS BEFORE ARRAIGNMENT CRIMINAL COURT ARRAIGNMENT . . . . . BAIL . . . . . . . . . . . . . . . . ASSIGNED COUNSEL . . . . . . . . . . FELONIES . . . . . . . . . . . . . . MISDEMEANORS & VIOLATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 6 7 7 8 8 9 9 10 10 11 12 12 13 13 14 15 16 16

. . . . . . . . . . . . . just like the rest of life. . . . . . . . . Lawyers are not supposed to solicit clients that . . . . . . . . . . . . . This handbook doesn't deal with specific cases or crimes. . If you have specific questions about a case. . . . . . . . . . . . WHAT CAN HAPPEN TO YOUR CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . at the system. . . . . . . . . . SUPREME COURT ARRAIGNMENT. . It's a realistic. . . . . . . . . . . . . "ASSERT YOUR RIGHTS" CARD. . . . . . . . . . . . . . . . TRIAL PREPARATION. . . . . . . . or check with friends or relatives who may have had criminal problems. . . . . . . but many of the general principles apply to other jurisdictions as well. . . . . . . . . . . WHAT TAKES SO LONG . . . . . This handbook is geared to the state system in New York City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CHOOSING A CRIMINAL LAWYER If you can afford a private lawyer. . . . . . . WHAT HAPPENS AFTER CRIMINAL COURT ARRAIGNMENT. . . . You wouldn't go to an eye doctor for a problem with your elbow. . . . . . . . . . . . . . . . . . . TRIAL. . . . . . . . . . . . . . . . . . . . . . . is not always fair. . . . . . . . It's not a good idea to hire a lawyer who approaches you in the courthouse. . . . PRE-TRIAL HEARINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPEALS. . Most of the legal terms used are explained in the text or are self-explanatory. . . . . . . . . . . . . . . . . . . . . . . . GETTING BACK BAIL MONEY. . . . 4 INTRODUCTION . . . That doesn't mean we give up. . . . . . . . . . . . . . . . . . . . . There's a lot of information that's just too technical or complicated for this book. . ABOUT THE AUTHOR . . . . . . . . COURT APPEARANCES. . . . . . . . . . . . . . . . . . . . . . GRAND JURY . . . . call your local bar association. . I suggest you hire a criminal lawyer. . CIVIL FORFEITURES. . . . it just means we try harder. . . . . . . SENTENCING . . . . . . . . . . . . . . . . The Criminal Justice System. . . . . . . you'll have to consult a lawyer personally. . . . . . . . . BENCH WARRANTS & BAIL FORFEITURES. . . . . . . . . TO PLEAD OR NOT TO PLEAD . . . . 17 17 17 18 18 20 20 21 21 22 22 23 24 24 25 26 28 30 31 31 33 People exposed to the Criminal Justice System for the first time often feel like they're in a foreign country with strange rules. not a philosophical look. . . . . . . It's based on over 10 years of experience "in the trenches". . . . . . SILENT INDICTMENT. . . . . . . . . . . . INDICTMENT . . This handbook has general information and shows how cases make their way through the system. . . . . . . procedures and language. . . . . . . . . . .YOUTHFUL OFFENDER. . . . . . . JUVENILE OFFENDERS . . . . . . . If you don't know any criminal lawyers. . . .

The more serious the charges are against you. You'll appreciate this when your case goes to trial.A. Everything you tell your lawyer is confidential. Your lawyer can't advise you effectively if you keep things from him/her. so your lawyer can . the more experienced a lawyer you need. It doesn't mean your case isn't important.s know and respect your lawyer. It's not a good relationship if you don't trust him/her enough to be truthful.A.s (District Attorneys) and will have a better idea of what you can expect in your case. even if you eventually hire a different lawyer. Don't think your questions are stupid just because you don't understand the system. that doesn't mean that she or he isn't working on your case. It's a very complicated system. you should get a different lawyer. Just because your lawyer isn't in touch with you all the time. another client's case has priority. whether you're innocent or guilty. just that at this time. There will be times when your lawyer may have to give priority to someone else's case. 5 You also have an advantage if the judges and D. You wouldn't want your lawyer distracted by less pressing matters when you face your moment of truth. The D. LAWYERS' FEES Lawyers' fees vary depending on the amount of experience hey have and the nature of the case. You should ask your lawyer to explain what's happening with your case. Find out how much criminal experience a lawyer has before hiring him/her. Don't feel slighted if your lawyer can't appear on your case when he or she's on trial with another defendant. You're not helping yourself if you think your lawyer will do a better job if she or he thinks you're innocent. It demands the most attention and concentration.A. They're more likely to listen if your lawyer has a good reputation. It's better to have a clear understanding about the fee before any work is done. Your attorney will know the judges and D.way. Trial is the most important and difficult part of a case. That's why you need a lawyer in the first place. LAWYER/CLIENT RELATIONSHIP It's important to trust your lawyer. is the one who prosecutes the case against you. His/her job is to defend you and protect you from the system. It helps if your lawyer practices where your case is pending. This is most likely to happen when your attorney's doing a trial. If you committed the crime or participated in some way and don't feel comfortable telling your lawyer.

it's best to call a lawyer before responding to them. like telling you things will go easier. Ironically. 7 If you're a suspect. unless they can prove that you blurted out a confession without being asked any questions. They're not your friends. Criminal lawyers usually require most or all of their fee up front. If you're arrested and don't have a lawyer. The police are interested in making out a case against someone they suspect committed a crime. call the Legal Aid Society. Appeals and civil work are also usually extra. expert witnesses (if necessary). the better. don't answer any . The police may mislead you if they want you to talk to them and you may find yourself under arrest based on your own statements to them. early in a case. Even if they use deceptive methods to get a confession. and a judge may allow the D. she or he can find out if the police want to question you as a witness or a suspect. 6 Your lawyer's fee will usually not include any other expenses. That's the easiest way for them to wrap up a case. If you're accused of drunk driving. unless you're the victim of a crime. You shouldn't be looking for bargains when your freedom and reputation are at stake. this may be considered good police work. you should contact a lawyer before you submit to a breathalyzer test.concentrate on your case and not your bill. If you have a lawyer before you get arrested. If you can't afford a private lawyer.A. use your statement against you. etc. If they question you after that. This should all be clearly spelled out in the retainer agreement you sign when you retain the lawyer. innocent people often have to pay higher fees. their cases usually require more work to prepare for and take through trial. your lawyer can tell the police that s/he doesn't want you questioned. There are important decisions to be made and rights to be protected. they won't be able to use your statements against you. or that a co-defendant has implicated you. transcripts. BEFORE YOU'RE ARRESTED The sooner you get a lawyer involved in your case. If you find out the police are looking for you.Because they're less likely to plead guilty. DON'T CONFESS The police are very good at getting confessions. You'll probably have to pay additional money fora private investigator.

8 The police usually take a black & white Polaroid picture of the line-up that doesn't clearly show the differences between you and the fillers. this photo and the police testimony will often be the only evidence a judge will have. Don't resist arrest or become verbally abusive to the police or you might find yourself charged with additional crimes and possibly injured in the arrest process. Don't think you can outsmart the police. Don't allow yourself to be videotaped. ask to have a lawyer there. Whether they read you your rights or not. to determine if the line-up was fair. Your silence can't be used against you. just that you should object and tell the police you want a lawyer. If you didn't have a lawyer at the line-up. s/he can make notes of the differences in appearance between you and the fillers in order to help you later when the D. but it's very hard to defend you if you've made a confession (or admission). home. LINE-UPS If the police intend to put you in a line-up. s/he can protect you. . Your attorney can make sure the police don't do anything improper. Even telling the police that you were at the scene of the crime but didn't do anything is an admission to an element of the crime. If the persons placed in the line-up with you don't resemble you. If they won't find better fillers. If you're in jail. then your attorney can ask the police to find better fillers. If they do have the right to put you in the line-up. and if they don't. or car. tries to use the line-up identification against you. like suggesting in some way that the witness pick you out. Your lawyer can determine if they have the right to do so. tell them you want to speak to a lawyer. Your lawyer can help you decide the best place to sit and number to hold to minimize the chance of being picked out.questions or make any statements about your case to the police or the D.A. be careful what you say about your case to other inmates. You never know when one of them will try to work out his/her own problem by becoming a witness against you. your attorney can monitor the procedure to make sure it's done fairly. This doesn't mean you should physically resist. Don't consent to be in a line-up or show-up.A. SOME OTHER DON'TS Don't consent to a search of your person.

addresses and phone numbers of your witnesses. Surrendering won't guarantee low bail. THINGS YOUR LAWYER MAY NEED TO KNOW There are things your lawyer needs to know. Where and when you were arrested and the circumstances surrounding your arrest. worthy of being "released on your own recognizance" (R. your lawyer can arrange for you to surrender. Below is a list of some information s/he may need from you: 9 1) 2) Whether you have any witnesses. character witnesses & eyewitnesses. These include alibi witnesses. Whether the police had an arrest warrant or a search warrant. so your lawyer can get their statements and advise them of the disadvantage to you if they speak the D.Were you read your rights? Was any force used against you? Do you have any injuries? Whether you know the witnesses against you and if they 3) 4) 5) 6) 7) 8) . Whether the police found anything on you relating to the crime.A. SURRENDER If you're a suspect in a crime. The purpose of setting bail is to make sure you return to court.O. Even though identification testimony is the least accurate. you show that you're likely to return to court without having high bail set. Whether you made any statements to the police or the D. or of having low bail set when you first appear before a judge for arraignment. is that it will show the court that you're a responsible person. The names. The reason it's good to surrender (if the police intend to arrest you).'d). By surrendering in the first place. It may also be helpful at plea or trial to show your cooperation. to defend you.A. Whether you were shown to any witnesses by the police and the specifics of that identification procedure. If so . but it gives you a better shot. but didn't.R. Your lawyer can tell the judge that you knew the police were looking for you. If you're not picked out of the line-up in the first place. had the chance to run. it's the most believed by jurors. Identification cases are the most difficult to defend. your case might be over before it begins and you'll save yourself a great deal of hassle and money.Having a lawyer at this early stage can be very helpful.

you can be held until you agree. 10) Whether you have any problems that may affect your case. After some preliminaries in the precinct. There are sometimes delays in the booking process. you'll be taken to Central Booking in the borough of arrest. the process often takes longer. misdemeanor or violation. to be processed further. 9) Whether you're on probation or parole. without a warrant. 11) Your immigration status. to give the police "probable cause" to arrest you. If it's your first arrest. if he or she has "probable cause" to believe you committed a crime. photographed. People find it hard to believe that they can be arrested based on one person's accusation. Your fingerprints have to be sent to the state capital to get your criminal record and check if you have any open warrants. Sometimes these problems may help your defense.J. If you refuse to be fingerprinted. BOOKING When you're arrested.have any motive to lie. C. you'll be processed by the police (booked) before being brought to court for arraignment. INTERVIEW . a criminal conviction may create problems for you with immigration. The officer can arrest you for a felony or misdemeanor (even without a warrant). which usually include being searched. 10 The police should have a warrant if they're arresting you at home. but there are exceptions to every rule. like mental or physical problems. The amount of time between arrest and arraignment varies from state to state and county/borough to county/borough. and in certain cases an identification procedure (line-up or show-up). Sometimes the computers aren't working and this delays getting your criminal record. if that officer sees you committing a felony. They'll arrest you even if you tell them you're innocent. or problems with drugs or alcohol. They hear that from almost every defendant. If you're not a citizen.A. All it takes is one person making a criminal complaint against you. fingerprinted. THE ARREST A police officer can arrest you. but that's the law. even the guilty ones. so they leave it for the courts to decide. without any corroboration.

and this can speed things up a little.After you're booked.R. Your attorney and the D. They will contact a friend or family member (depending on the name you give them as a contact person) to verify your information. you'll be interviewed by the N.J. it may hurt your chance of getting low bail.Y.B. Your lawyer will often "waive formal arraignment". you'll be taken to a precinct to be lodged for the night. It's important to answer their questions accurately. (not about the facts of your case). In certain areas.). They interview the arresting officer and/or the witnesses/victims and decide what you'll be charged with. People often get very upset at this delay but there is really nothing you can do about it.).C.A. advise you of your rights and make an application for low bail or R.'s office will be drawing up a formal complaint against you. They use the information to prepare a recommendation as to bail (often called an R. about your residence. private lawyers are given preference once you're produced in court. and it will look like you're trying to hide something from the court. Criminal Justice Agency (C. CRIMINAL COURT ARRAIGNMENT At the arraignment. If you can't afford a private lawyer. 11 WHAT ELSE HAPPENS BEFORE ARRAIGNMENT While you're being booked and interviewed by C.O. If you give them incorrect information.J. There are often delays in being brought to court.A.. If it appears to Central Booking that you won't be arraigned the day you're booked. to help the judge in arraignments decide the question of bail or R.A. employment. This is usually done by their Early Case Assessment Bureau (E. The system may be backed up if a lot of people have been arrested before you who are also waiting for arraignment. at this . there will be a Legal Aid lawyer assigned to your case at the arraignment.R. Your lawyer can find out where you are in the system and let your family know approximately when you'll be arraigned. sheet).C.O. your lawyer will interview you. etc. criminal record. There will be a discussion about your case. the D.A. so the charges against you won't be read aloud in open court. may have a conference at the bench with the judge.A.O. It's not uncommon for the delay to be more than 24 hours.R. All of the above has to be done before you can be brought to court for arraignment. because they'll note the fact that your information was inconsistent with the verifier's. tell you what you're being charged with. Your lawyer can get some valuable information from the D.A.

as evidenced by all the people who came to court for you. This will depend on the nature of the case. 12 If the charges are serious felonies. When bail is set. and the judge might set the bail at that amount. The D."bench conference". will probably give notice that their office intends to present your case to a Grand Jury. The first bail that's set is often the most important. so you can be bailed out from court. Your lawyer can often estimate the amount of bail the judge might set. bail has to be put up at the jail you're in or at certain other locations in the city. Have your people bring money with them for bail. It helps to have as many friends and family members as possible at the arraignment. it's unlikely they'll be disposed of at the arraignment. Being remanded without bail is likely if you're charged with murder or if you're charged with a serious felony and have another felony case pending. Your lawyer can advise you about that. Bail can be posted by a bail bond or in cash. There may also be some discussion about a pleabargain at this point. there's usually a bond amount set and a cash alternative. bank book or the like). Your lawyer may give reciprocal notice that you wish to testify in the Grand Jury in your own behalf. or be remanded without bail. The Grand Jury will be discussed more fully later in this guide.O. Your lawyer will discuss the offer with you and advise you if s/he thinks it would be a good idea to accept it. It saves a lot of hassle if you're bailed out from court. Sometimes felony charges are reduced to misdemeanors at the arraignment. BAIL The judge at the arraignment is the one who decides about your bail. your people have to see a bail bondsman.'d (released on your own recognizance). To get a bail bond.R. The bail may be lower if your lawyer can show the judge you have strong community ties. He will require some cash (at least 10% of the bond) and collateral for the rest (a house.A. at a hearing or at trial). your criminal record. The witnesses against you do not have to come to the arraignment or appear in court unless they're required to testify (in the Grand Jury. Once you're removed from the court building. It's hard to get a bail reduction unless your lawyer can show there's been some change in circumstances since the first bail was set. your community ties and which judge is sitting in arraignments. . You may be R. If your people have money with them at the arraignment and the judge intends to set bail that's a little more than they have your lawyer can tell the judge the amount of money your people have with them. Certain cases are disposed of at the arraignment. have bail set.

including investigators. funding for expert witnesses. Lawyers who work for the Legal Aid Society are competent. There's also an "appeals panel" to handle your appeal. dedicated lawyers. The "misdemeanor panel" has lawyers qualified to handle misdemeanor cases. you'll be assigned a lawyer from the 18-B "homicide panel". if you're indigent. The "homicide panel" has the most experienced criminal lawyers. In other states it is the Public Defender. well-trained. and he or she says: "No. Legal Aid might not be able to represent you because they represent a witness against you who has a pending case. and are assigned a Legal Aid lawyer or a lawyer from the 18-B panel. 14 . There are you may be assigned an 18-B lawyer. the Legal Aid Society is only allowed to represent one of them. The "Family Court panel" is for criminal cases involving juveniles that will be handled in the Family Court. There are different panels of 18-B lawyers for different types of cases. There are times I've asked someone who calls if they have a lawyer already. social workers. It's unfortunate that defendants have that opinion of Legal Aid. These lawyers have been screened to make sure they're qualified to handle the kinds of criminal cases they'll be assigned to.13 ASSIGNED COUNSEL Many people accused of crimes can't afford to hire a private lawyer. etc. The Legal Aid Society is like one big law firm. This would also be considered a conflict of interest. An 18-B lawyer criminal cases from indigent defendants several reasons why Legal Aid. is a private lawyer who accepts assignments of the court and is paid by the state to represent (those defendants with no money). The Legal Aid Society usually does not handle murder cases. and are indigent. and it's considered a conflict of interests to have the same law firm represent co-defendants. If you're accused of murder. I have a legal aid". instead of If two or more people are accused of committing a crime together. The "felony panel" has more experienced criminal lawyers than those on the "misdemeanor panel". The Legal Aid Society has excellent support staff.

If you're on probation or parole. the judge might treat you as a "youthful offender" (Y. under certain circumstances.FELONIES There are different categories of crimes. This means you can't get probation.'s).D. In some cases your lawyer can get you a Certificate of Relief from Civil Disabilities that may mitigate the effect of a felony conviction.O. You may even be able to get an A.O.'s and V. You're more likely to get an A. and.C.) and you'll probably get extra jail time. you're released from custody and given a date to appear in court to be arraigned. as if you were never arrested. one prior felony conviction makes you a "predicate felon". These are usually cases involving the sale of drugs or the use of a gun or violence. or certain low grade felonies.T.O.the conviction is vacated and the case sealed.F.C. 15 YOUTHFUL OFFENDER If you were under 19 when the crime you were arrested for was committed. which is like a summons. give you a "desk appearance ticket" (D. a conviction after trial or plea of guilty to a new crime (felony or misdemeanor) can violate your probation or parole (V. violation.) . Certain felonies carry mandatory jail sentences.O.A. The most serious felonies are "A" felonies. the least serious are "E" felonies. MISDEMEANORS & VIOLATIONS The less serious crimes are classified as misdemeanors. if you don't get into trouble within the six months. If you're convicted of a felony. if it's your first arrest.D. Violation offenses are less serious than misdemeanors and aren't considered crimes. jail sentences are mandatory and longer. Generally. you may also lose some of your civil rights. Instead of going through the booking process and being held in jail until you're brought before a judge for arraignment. This means your case is adjourned for six months (you don't have to return to court). . The more serious crimes are called felonies.P. it's dismissed and sealed. the police can. more than one prior felony conviction makes you a "persistent felony offender". and you're convicted (plead guilty or are found guilty after trial). If you're arrested for a misdemeanor.). such as "armed felony offenses" and "violent felony offenses" (A. If you're accused of a felony and have one or more prior felony convictions. The designations vary from state to state.F. Penalties for misdemeanors and violations are less serious than those for felonies. (adjournment in contemplation of dismissal). if you plead guilty or are found guilty after trial (conviction).

JUVENILE OFFENDERS There are certain crimes where juveniles are treated as adults in the Supreme Court and others that are dealt with in the Family Court.A. This will be explained more fully later. This is meant to give a young person a chance to straighten out without the stigma of a criminal record.A. you can plead guilty.A. or a judge (very rare). If you got Y.A.A. Cases that are going to remain felonies must be transferred to the Supreme Court. the Supreme Court is above the Superior Court.'d by the D. . Cases that start as felonies and are reduced to misdemeanors by the D. If you received Y.You're entitled to "youthful offender" treatment on your first misdemeanor conviction. To get your case transferreed from the Criminal Court to the Supreme Court. In some states this is termed the Municipal Court..O. In other states this is called Superior Court and in those states with a Superior Court system. it won't save you from extra jail time for violation of the probation or parole from that case. must present his/her evidence to a Grand Jury and get an indictment.C. misdemeanors and violations) start in the Criminal Court. on a prior case. The D. 16 WHAT CAN HAPPEN TO YOUR CASE Almost all criminal cases (felonies. if they can show there's a likelihood you'll be convicted. This is a relatively new law. There are only three things that can happen to a criminal case: it can be dismissed or A. It's discretionary for certain first time felony convictions. CIVIL FORFEITURES Generally speaking. the D. if you're convicted of something else after that.'s office can even attach this property before you're convicted. "Youthful offender" doesn't mean you won't be punished for the crime (with jail time or probation). Your lawyer will explain it to you.O. the D.D. if it applies to your case. then it's as if you weren't convicted of that felony and you won't be considered a "predicate felon" if you're charged with another felony. on a prior felony case. stay in the Criminal Court until they're finished. but the punishment is often less severe and you won't have a criminal record. or the case can go to trial (where you're either acquitted or convicted). This guide won't discuss the distinctions.'s office can seek forfeiture of the instrumentality or proceeds of certain crimes. and cases that start as misdemeanors or violations. Certain procedures are different for juveniles.

17 On the adjourn date. the D. Basically. This would be called a "prosecutor's information".'s office. you should be R.If you get a dismissal. then the D.'s evidence. It's not hard for a D.A. has six days (on a felony charge) from the date of arrest to have witnesses give sworn testimony supporting the charges against you or you're entitled to be released from jail. but if you're rearrested. Potential employers and the like won't have access to your fingerprint record or any information about your case.R.A. your case can be sealed and your fingerprints and arrest photos may be returned to your lawyer.A. if the D.C. WHAT HAPPENS AFTER CRIMINAL COURT ARRAIGNMENT If bail is set that you can't make. can get an extension.A.A. This can be done by bringing the witnesses to court for a preliminary hearing or having them testify before a Grand Jury. but there is enough for misdemeanor charges. it will show up. They listen to evidence presented by the D. can show a good reason for not getting an indictment or providing a preliminary hearing within the six days.A. The Grand Jury proceedings are secret and defense lawyers are only entitled to be present when and if their own client testifies. your case will usually be adjourned to six days from the date of your arrest.A. District Attorneys would rather not expose their witnesses to cross-examination at this early stage. . an A. to get an indictment because the Grand Jury usually only hears the D.A. It takes 12 grand jurors to vote an "indictment". Unfortunately these will just be souvenirs because the police usually keep a copy of your photo for their mug files and your fingerprints are kept in the criminal justice computers. But if the D. or plead guilty to a violation. has not complied with the law. It's very rare to have a preliminary hearing in New York City. There's no defense lawyer to cross-examine the witnesses and they usually don't hear from the defendant. A Grand Jury also has the power to return a case to the Criminal Court as a misdemeanor if it thinks there isn't enough evidence for felony charges.O. GRAND JURY A Grand Jury is comprised of 16-23 people. and the proceedings are secret in order to protect the witnesses. an acquittal after trial. and decide if there's enough evidence against a defendant for him/her to face felony charges. the law says that if you're in jail. and they avoid doing this by going to the Grand Jury instead.. because at a preliminary hearing the defense lawyer gets a chance to cross-examine the witnesses. The Grand Jury is an "arm" of the D.D.'d.

In "silent indictment" cases. your lawyer will be notified if the D. the Grand Jury may fail to vote an indictment (No True Bill). Most cases that are presented to a Grand Jury are presented within six days of arrest. It's not evidence of guilt. The D. If the Grand Jury indicts. your defense lawyer must notify the D. 18 If you're indicted. your case will be transferred to the Supreme Court. There's no time limitation if you're accused of homicide. still has the right to present felony charges to a Grand Jury within six months of your arrest.R. You'll still be able to present your defense at trial.A. an arrest warrant issues and you'll be arrested and brought to Supreme Court for arraignment. your lawyer can be there with you. but can't ask questions or make objections. saving you a lot of hassle and money. If you're indicted this way. If you're out of jail. You're advised of the charges against you and there's a decision on bail. before the Grand Jury presentation is completed. To do that.A. If things go well. you won't be notified that your case is being presented to a Grand Jury and may not have the chance to testify or present defense witnesses. intends to present your case to a Grand Jury. to prevent the defendant's R. . The same "silent indictment" procedure may be followed if you were arrested for a felony and had your case dismissed by a judge in the Criminal Court.If you've been arrested. In certain cases your lawyer might advise you to testify before the Grand Jury and/or present witnesses. and your case will be over. you and your lawyer will be notified by mail when to come to the Supreme Court to be arraigned on the indictment.A. INDICTMENT An indictment is merely a formal accusation listing the felony charges against you in the Supreme Court. If you testify in the Grand Jury. SUPREME COURT ARRAIGNMENT The Supreme Court arraignment is similar to the Criminal Court arraignment on the initial complaint.O. This is another reason to get a lawyer working on your case early on. this is called a "silent indictment". SILENT INDICTMENT Occasionally cases are presented to a Grand Jury before anyone is arrested.

D. has information your lawyer needs to prepare your case. the chances are that your bail status will remain the same. Keep track of the courtroom you're supposed to appear in and the adjourn date. This is your responsibility. If it's the right courtroom and date and your lawyer isn't there. from the D. The only time you should wait for a letter from the court. you'll be brought to Supreme Court for arraignment and your lawyer will be notified when to appear. Unless you're told otherwise. If you're out on bail.D. A case is transferred to the Supreme Court after a Grand Jury has voted an indictment. tell one of the court officers so they won't call your case while you're not there and issue a bench warrant because you're absent. or don't show up. BENCH WARRANTS & BAIL FORFEITURES If you're late. If you're in jail. before appearing.A. unless your lawyer has arranged for you to be excused. in court. Your attorney will waive the public reading of the charges against you and enter a plea of not guilty for you. is if your felony case has been transferred to the Supreme Court and you've been told to wait for notification of the Supreme Court arraignment date. If you leave the courtroom to call your lawyer.If you're out of jail and have been coming to court when you were supposed to. It's very hard to defend that charge and sometimes gives the D. your bail money can be forfeited. A bench warrant will also stay on your record and come back to haunt you later. Most lawyers have to give priority to their clients who are in jail and cover those cases first. and if you appear for arraignment when notified. Your lawyer may also get a "voluntary disclosure form" (V. be there at 9:30 A. It will give a judge an excuse to set higher bail on you in the future.F. even if you clear it up. Your lawyer gets a copy of the indictment from the D. the judge may issue a bench warrant. You can be arrested on that warrant. and police reports at this time. extra bargaining power in dealing with your current case. The V. you must appear in court on every adjourn date. If you get to court on time and don't see your lawyer.). 19 COURT APPEARANCES If you're out of jail while your case is pending. Bail jumping is also a separate crime you can be charged with if you're out on a bench warrant more that 30 days.F. it probably means he or she had to cover another case first.A. . check to see if your name's on the court calendar to make sure you're in the right room on the right date.A.M.

there's an easier procedure for reinstating the bail. The procedure varies from borough to borough. at 1 Centre Street in Manhattan. that's no excuse for not calling to let him/her know why you can't make your court appearance. that will be returned.If you can't come to court because you're sick. If you have a bail bond. If the person who put up the bail (depositor) has moved since putting up the bail money. . the attorney can tell the judge and ask the judge not to issue a bench warrant. If you have a good excuse why you can't come to court. If the depositor waits beyond a year from the date of forfeiture. 20 You should have your lawyer's card with his/her name and phone number. or because you've been rearrested. have your lawyer check your bail status when you return. If you return within 45 days of the forfeiture. The defendant must have returned to court before this motion can be brought. as does the amount of the cash bail. If you're represented by an assigned lawyer (Legal Aid or 18B). GETTING BACK BAIL MONEY If you make all your court appearances. with proof of identification and his/her bail receipt. if any. and your lawyer knows about it before going to court. Don't assume that if you're rearrested. the bail money should be returned to the depositor several weeks after your case is over. the judge will issue a bench warrant and a bail forfeiture.that's the statute of limitations on these motions. Even if you're represented by an assigned lawyer. the person who put up your bail (depositor or bail bondsman) may have to pay a private lawyer to do a "bail remission motion" to try to get back his/her money. But if your bail was forfeited because you missed a court date it is difficult for the depositor to get it back. It's your responsibility to let your defense attorney know if there's a good reason you can't come to court. the depositor has to go to the Department of Finance. call your lawyer and let him/her know. This is a hassle for you and for the person who put up your bail. contact the bondsman if there's a forfeiture. whether you win or lose. it may be too late to get any money back because of the statute of limitations. to get the bail check. or have a family member call. The bail depositor should not wait until your case is over before arranging for a "bail remission motion". somehow the courtroom where your case is pending will know about it. A "bail remission motion" must be done within one year of the forfeiture of bail . If you "bench warrant". Otherwise.

having memories that fade over time. 22 One of the biggest delays in the system is due to trial preparation. trial preparation usually begins after you've been arraigned on the indictment. trial preparation begins after the Criminal Court arraignment. has to be ready for trial within six months of your arrest. Each case is different and requires different preparation. the case is adjourned for your lawyer to make "motions". There are "speedy trial rules" governing the amount of time the D.A. Maybe that's why we're also called counselors. busy D. even if you're in jail.21 WHAT TAKES SO LONG Criminal cases can take a long time to finish. It's better to have the delay than go to trial without adequate preparation.A.A. there will be a conference.. delay is helpful to the defendant. There are certain procedures that have to be followed. your case will be adjourned. Some of the reasons for the delay include: crowded court calendars. or longer. If the plea is refused. or police that your lawyer needs to prepare for trial. Plea-bargaining will be discussed later in this guide. TRIAL PREPARATION After arraignment. the D. but there are certain time periods that are excluded from the six months (or 90 days) and these rules do not apply to homicide cases. Technically. There will probably be a plea offer. Lawyers sensitive to their clients' feelings often act as psychologists and social workers as well as lawyers. (90 days for misdemeanors). If it's a felony.A. has to be ready for trial.A. This depends on the seriousness of the charges and whether you're going to take a plea or go to trial. The next time the case is on. If it's a misdemeanor. In certain cases. where the D. like all of us. Trial preference is usually given to defendants who are in jail. to go to trial.s and defense lawyers. One of the things your lawyer has to do is make certain "mo- . but more serious cases can take six to 12 months. the judge and your lawyer will discuss your case to see if it can be disposed of without a trial. Witnesses. and delays in getting documents from the D. It's upsetting having criminal charges hanging over your head. The wait is frustrating but there's little that can be done to speed things up. Your lawyer can explain this more fully as it relates to your case.

There are provisions in the law for a person to plead guilty without admitting guilt. where appropriate. Whether you take a plea or go to trial is an important decision you have to make. Once your lawyer has a clear enough picture of the evidence against you. usually about three weeks at a time. and requests that certain evidence be suppressed on the grounds it was obtained in violation of your rights. Because of all the delays. until it's ready for trial or you take a plea. There will usually be hearings on the suppression motions if the judge thinks you're entitled to them. Your attorney will prepare an Omnibus motion which is a formal written request for certain information the D. but there . Police reports are often turned over with the names and addresses of witnesses deleted to protect them. This is more likely to happen in Criminal Court in misdemeanors cases. Plea-bargaining is actually like negotiating the disposition of a case.A. This is called a SERRANO plea or an ALFORD plea (named after the cases that allow this kind of plea). There are also certain "dismissal" motions that are included. especially if you're innocent and the evidence against you looks strong. but his/her opinion should be very important to you when you decide to take a plea or go to trial. Some judges don't like to take SERRANO/ALFORD pleas. Sometimes a plea-bargain is appropriate. It's not the kind of decision your lawyer should make for you. TO PLEAD OR NOT TO PLEAD Many people think plea-bargaining is a dirty word.tions". Judges usually don't make the D. It's very hard to admit guilt if you're innocent. Your case will be adjourned. These pre-trial hearings will be discussed later. often keeps information from the defense until the eve of trial. s/he can evaluate the chances of winning your trial. The D. We sometimes call this "trial by ambush".A. Your attorney will usually balance your odds of winning against the amount of time you could be sentenced to if you lose trial and the sentence being offered in the plea-bargain.A. 23 Defendants who are in jail awaiting trial are more likely to take pleas than defendants who are out of jail. responds to your lawyer's "discovery" motions and turns over police reports to your attorney. The decision is a very difficult one.A. Another thing your lawyer has to do to prepare your case for trial is to investigate. has about your case (discovery). Sometimes an investigation can't be done until the D. disclose that information until trial. some defendants take pleas just to avoid having to come back to court so many times.

are defendants who do it because their chances of winning are so slim. Your lawyer has police and detective investigators (D. there's no guarantee of winning a trial.I. called pre-trial hearings. jurors are exposed to crime on the streets. you usually get more time than that offered in the plea-bargain. either by threats or brutality. It's like getting extra punishment for putting the state through the trouble and expense of the trial. Trial is an uphill battle for the defense attorney. on the grounds that you weren't advised of your constitutional right to remain silent or were forced to make the statement. but that's where things are and this guide discusses realities. PRE-TRIAL HEARINGS There are several types of hearings. Sorry to paint such a grim picture. that might be the end of your case. the judge decides whether or not to let the D. there's no real way to get them to cooperate if they don't want to and most people don't want to get involved.A.. that may occur before a trial jury is selected. and that the burden of proving your guilt is on the D. A HUNTLEY hearing is to suppress statements allegedly made by you to a law enforcement officer (including the police. not ideals. as well as getting private detectives. 24 Not every case has pre-trial hearings. and tend to presume you're guilty and expect the defense to prove your innocence.s) to help investigate and get witnesses to cooperate. The District Attorney's office also has public opinion on their side. use certain evidence against you at trial. The D. or their agent). especially is New York City. either personally or through the media. nowadays. jurors do not always understand or follow the law. I often have clients tell me. Even if the defense has been able to get the names and locations of witnesses. or suppression hearings. If the evidence in question at the hearing is the only evidence against you..A. has most of the tools.A. and you win the hearing. One reason people take pleas is to avoid the uncertainty of trial. No matter how experienced or skillful your lawyer is. Unfortunately. Even though the law says that you're presumed to be innocent. when I interview them for the .A. If you go to trial and lose. This is especially true if you're a member of a minority or poor. It depends on the evidence against you. After the hearings. These hearings are usually named after certain landmark cases. they'd rather take the sure thing (usually probation or low jail time) than risk a severe jail sentence after losing trial. the D.

25 The problem is that juries tend to believe that if you've committed crimes in the past. drugs. When the witness is the defendant. you probably committed this one too. the trial begins. on the grounds that the police didn't have probable cause (any legal reason) to arrest you in the first place. the opposing counsel can use the witness' criminal record on cross-examination to show that the witness isn't worthy of belief. and that's not one of the factors a jury is supposed to consider as evidence. that's rarely the result. The defense attorney tries to limit this through the SANDOVAL hearing. It's unlikely that the police will admit they failed to read you your rights or that they threatened or beat you. except under specific conditions that are too technical to discuss here. Unfortunately. At the HUNTLEY hearing they'll probably testify that they read you your (MIRANDA) rights and deny that they used any force. as to your guilt or innocence. They seem to think that's a way to get a case dismissed.first time. after listening to the evidence. If you don't testify at trial.A. A SANDOVAL hearing is a hearing to prohibit the D. A DUNAWAY hearing is also a hearing to suppress statements. A WADE hearing is a hearing to suppress the identification on the grounds that the pre-trial identification procedure was suggestive and that the witness would not have otherwise been able to identify you.'s right to this cross-examination technique. Ordinarily. when a witness testifies at trial. the D. This happens in most instances where the police version differs from the defendant's. from using your criminal record to impeach you during cross-examination. TRIAL After the pretrial hearings are finished. the court has to balance your constitutional right to testify on your own behalf against the D. A seized crime) you or MAPP hearing is a hearing to suppress physical evidence from you (usually a weapon. The trial is the part of the case where a decision is made by a judge or a jury.A. that the police did not "read them their rights". You're entitled to a jury trial in all felony cases and misde- .A. The judge usually believes the police. can't introduce your criminal record. The only consequence of not reading you your rights is that if you made a confession there are now grounds to get it suppressed. or the proceeds of a on the grounds that the police had no legal right to stop search you in the first place. if you testify at trial.

Peremptory challenges are those that do not require the attorney to give a reason for the challenge. practically speaking. Most judges warn defendants of that possibility. It's more a process of elimination than one of selection. are called into the jury box to be questioned by the judge. Assuming you're having a jury trial. There are a specific number of peremptory challenges for each side. If you're out of jail and don't appear for trial. When the police pick you up on the bench warrant. in addition to getting a bench warrant and forfeiting your bail. .. If one of the jurors can't continue to serve (because of illness or the like). After each round.A. The judge explains some general principles of law to them. If you've been warned. From that panel. If either side can show the judge that a potential juror can't be fair. A panel of prospective jurors is brought to the courtroom from the Central Jury Panel. This kind of decision is between you and your lawyer and usually depends on the specifics of your case and which judge is in the trial courtroom. and challenge the jurors they don't want. and don't appear. then that juror can be challenged for cause. the attorneys usually leave the courtroom with the judge and court reporter (who records the proceedings). depending on the nature of the charges. an alternate is substituted. your case may be tried without you. the D. 12 or more at a time. waive your right to appeal. not like you would on a date. It's important to dress appropriately when you're on trial. there are certain cases that are better tried without a jury. you'll be sent to jail to serve your sentence. A felony trial jury consists of 12 jurors and usually two alternates. Even if you're entitled to a jury trial.A. and the defense attorney. you can be tried. You may also. Dress like you would for a church function. The likelihood of conviction increases if you're not present at your trial.meanor cases that carry penalties over six months in jail. You want to look neat but not flashy. six if it's a misdemeanor trial. 26 The purpose of the voir dire is to give the D. the first part is to select the jury. convicted and sentenced in your absence. Challenges for cause are unlimited. This is called voir dire. and the defense attorney a chance to find out whether the prospective juror can be fair.

A. 27 A major trial decision is whether or not you'll testify in your own behalf at trial. This tells the jury what the prosecution intends to prove to them during the trial. After opening statements. questions that witness before the defense. Summations are the lawyers' comments about the evidence to show why they think the jury should reach a certain verdict. The jury is supposed to decide. etc. the defense doesn't have to present a case because the defense doesn't have to prove anything. the D. the defense may present evidence to rebut that. it's cross-examination.A. sums up last. the judge usually tells them more of the general principles of law. presents evidence. if they're convinced of your guilt "beyond a reasonable doubt". the D. because the defense has the burden of proof and the D.A. Jury members are not allowed to discuss the case with anyone who isn't on the jury. This will be a matter of trial strategy that your lawyer will decide. then makes an opening statement. If this happens. Sometimes the jury can't reach a . has finished putting on the prosecution's case.After the jury is selected. When the defense attorney questions that witness. This is direct examination. The defense attorney sums up first. However. A verdict must be unanimous. After the defense rests. Your attorney explains their duties and explains the order of the trial. contraband.A. When both sides finish presenting their evidence. Even though the jury is told not to hold it against you if you don't testify. Your attorney usually describes this as a table of contents. the D. may present evidence to rebut something the defense has raised in its case.A. When a witness testifies for the prosecution. has been given permission to cross-examine you about your criminal record. your lawyer has the right to present a defense case.). Evidence is testimony from witnesses and exhibits (weapons. The defense attorney may also make an opening statement. When the D. depending on the nature of your defense. Your lawyer also warns them not to discuss the case with anyone until it's over. The decision is harder if the D. The D. and.A. documents. the judge explains the relevant law to the jury and sends them out to deliberate until they reach a verdict. When both sides finish their summations. Then they do summations. they rest. they often do hold it against you. The defense attorney is not required to make an opening statement. based on what the District Attorney presents.A. because the defense is not obligated to prove anything during the trial.

they usually contact the D. the judge may decide not to keep his/her promise to you and give you the option of taking more jail time or withdrawing your plea. because the probation department recommendation carries a lot of weight. Assigned lawyers have a lot of cases to do. especially if you're indigent. If the jury can't reach a unanimous verdict. you can't be charged or tried again for the same case. When the Department of Probation prepares its report. or get convicted of another crime. If you're acquitted (found not guilty). If you're convicted after trial. If you're eligible for "youthful offender" treatment. you may be tried again. the judge can give you a harsher sentence without giving you the option of withdrawing your plea. so it usually takes longer for them to get to your case. and they're sequestered for the night (sent to a hotel together). they may let the judge know they're deadlocked and the judge may declare a "hung" jury. SENTENCING If you're convicted after trial. APPEALS If you're convicted after trial. and it seems they won't be able to no matter how long they deliberate. It will either be a Legal Aid lawyer or an 18-B lawyer. It's very important to make a good impression on the person interviewing you. Even if your sentence was negotiated by plea-bargain. Appeals take a long time to be heard. If you've taken a plea and are out of jail awaiting sentence and fail to keep your appointment for your interview with the Department of Probation. Part of the delay. if the probation report is bad. If you're indigent. but not the defense attorney. If you've been in jail awaiting trial you'll get credit for that time toward your sentence. or fail to appear in court on the date of sentence. the probation report is sometimes the deciding factor. a lawyer will be assigned to do your appeal. or take a plea. your lawyer may want to prepare his/her own "pre-sentence report" to balance things out. your lawyer must file a "notice of appeal" for you within 30 days of the sentence date to insure your right to appeal. your probation report is attached to your file and is taken into consideration when you become eligible for parole.A. is the length of time it takes the appeals lawyer to get the minutes of the trial. 28 Also. If that happens. the case will be adjourned for the probation department to prepare a report to aid the judge in sentencing. It sometimes takes years . for input.verdict by the end of the day.

29 To protect yourself. David's professional activities include: * Vice President . cut out the card below and keep it with you.. "ASSERT YOUR RIGHTS" CARD If you're arrested. Ms. David is admitted to practice in the State and Federal courts in New York and in the United States Supreme Court. search you or your property.Y. etc. date of birth. She's represented thousands of defendants accused of almost every type of crime. you can tell the police your name. I do not consent to a search. I will not waive any of my constitutional rights. Brooklyn. 11241. just in case. --------------------------------------* * * * * * * * * * I do not wish to answer any questions without speaking to an attorney first. but don't answer questions about the crime or where you were when it happened. She's a frequent lecturer and is often consulted by the media on matters relating to the Criminal Justice System. address. you can speed up the process quite a bit. (pedigree information). or place you in a line-up. I do not consent to being in a line-up. Sometimes you can get bail pending appeal but the majority of defendants wait in jail until their appeal is heard. Thank You --------------------------------------30 ABOUT THE AUTHOR Joyce David is a criminal lawyer with offices in the Tower Suite of 16 Court Street. please just photocopy this card.Kings County Criminal Bar Homicide Panel . If you can afford to pay privately for the appeal. and the minutes of the trial. This card could save you years in jail. N.New York State Association of Defense Lawyers (also Chair Task Force on Bias in the Criminal Justice System) Executive Vice President .for an appeal to be heard. (718) 875-2000. Hand it to the police if they want to question you. If you borrowed this book from your library.Second Judicial Department * * * * * * * * * * * * . Ms.

Women's Division Candidate for State Committeewoman .National Association of Criminal Defense Lawyers Executive Vice Chair .Brooklyn Women's Political Caucus Special Counsel to Co-Chair .1984 Freelance Journalist Society of Professional Journalists & NY Deadline Club New York Women in Communications. Inc.New York State Democratic Committee.* * * * * * * * * Co-Chair Criminal Law & Procedure Committee . Mensa 31 .Brooklyn Bar Association Women & Minorities Committee .

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